Constitutional debate erupts as early elections are canceled

PRAGUE, Czech Republic — When the Constitutional Court struck down a constitutional amendment last month, which was to pave the way for early elections, the political establishment was shocked that the court had asserted itself in such a manner.

Others supported the decision, saying the ruling was not only a breakthrough for the court but was also a watershed event for the country's still fledgling democracy.

Early elections seemed inevitable after the government collapsed in the spring following a vote of-no-confidence in parliament. In an effort to hasten the cumbersome process toward early elections, parliament passed a new amendment that the Constitutional Court subsequently nixed, ruling against what it called a retroactive and stop-gap measure.

The ruling has unleashed a constitutional debate about the fundamental duties and authority of the judiciary. As the Czech Republic’s democracy continues to develop, such a debate is both reflective of the country’s journey toward a strong democracy and integral to it.

Many political leaders could barely contain their rage at the ruling. President Vaclav Klaus went so far as to call the court's decision “wrong.” (By definition, of course, the Constitutional Court cannot be wrong. Regardless of what anyone thinks of a particular ruling the constitution means what the court says it means.)

Political analyst Jiri Pehe said the president's comment illustrated the fact that the country's democracy is still a work in progress.

“To say the Constitutional Court is wrong is, from a political point of view, totally wrong,” he said. “And certainly it should not be a president of the country ... who should be saying this. It is really not healthy for our democracy if ... the president of the country [is] not only criticizing the Constitutional Court but basically rejecting the ruling.”

Pehe, concluded: “I can't imagine anything of the sort in any developed democracy.”

But others, like Jan Kudrna who teaches constitutional law and political science at Charles University, say the court overstepped its powers. He says the court's authority is limited to so-called regular laws — those passed by a simple majority in parliament — and whether or not they violate the constitution. But constitutional amendments — those passed by a three-fifths majority in parliament — are beyond the court's purview.

“Changes to the constitution are untouchable by the Constitutional Court,” he said. “The court should respect the constitution.”

Kudrna argues that parliament should have the final word on amending the constitution because the MPs are accountable to the electorate, whereas the Constitutional Court judges are political appointees.

“The people are the sovereign in this country,” he said.

But sovereign or not, others say it's the parliament and the president who need to respect the constitution. They insist the Constitutional Court must serve as a check to prevent legislative abuses.

That check, they say, should not be limited to so-called regular laws — which may raise a constitutional question — but should also extend to constitutional laws.

“All that the Constitutional Court did was simply use its right to strike down laws and constitutional amendments which are not in line with the constitution,” said Pehe. “Amendments that violate the democratic order of the country are unconstitutional.”

“Each democracy is based on two basic pillars,” he said. “One of them is the rule of the people, the majority. The second one is the rule of law. And the constitution is here to protect the rule of law. And I think that politicians simply should not be allowed to bend the constitution at will.”

Indeed, in their 13-2 ruling the court took umbrage with two aspects of the amendment passed by parliament — that the change was a one-time use only and that it was retroactive.

When the right-of-center coalition, which had ruled for more than two years, collapsed last spring in a no-confidence vote, early elections became the logical next step. But the constitutional mechanism for dissolving parliament and calling early elections is complex and destined to be a long, drawn-out process.

Since the major political parties were in agreement that early elections should be held sooner rather than later, they wrote a constitutional amendment — to be used this one time only — to bypass the prescribed procedures for dissolving parliament and calling an early election.

Parliament passed the amendment, but one independent MP filed a complaint with the Constitutional Court.

In essence the court said it's fine for parliament to amend the constitution, but that the changes need to be passed before the need arises, not after, and that such changes should be permanent, not a stop-gap measure.

Political analyst Kudrna said he doesn’t think the principle of retroactivity exists. “The Constitutional Court ruling is bad because the principle of power of the people, and bodies elected by the people, has been violated,” he said.

The timing of the court's ruling was inauspicious. It's not that the court didn't act in a timely manner, but when the ruling came down in September it was just four weeks before the already scheduled — and since abandoned — early election was due to take place. The campaign was already in full swing and many Czechs initially felt like they'd had the proverbial rug pulled out from under them.

Still, despite all the heady talk, some feel that there are practical reasons not to go ahead with the early elections.

Besides what he believes to be the constitutional merits behind the court's ruling, Pehe, the political analyst who is also director of the New York University campus in Prague, said he thinks there are good reasons for allowing the current, caretaker government of experts to serve out the parliament's existing mandate, which expires next June.

First and foremost is that the global economic crisis has caused tax revenues to plunge, and opened up a huge hole in the budget for this year and next. The chances of closing that deficit in the midst of a contentious political campaign would appear dubious at best.

Indeed, with the two major political parties off the hook for the new austerity plan, the interim government appears to have negotiated substantial spending cuts and tax increases.

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